Todd Schosek, as Administrator of the Estate of Jesse J. Schosek, Deceased and Kelly Schosek, as Administrator of the Estate of Carol. L. Schosek, Deceased, No. 223 SSM 45 (N.Y. 2008)

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This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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4 No. 223 SSM 45

Todd Schosek, as Administrator of

the Estate of Jesse J. Schosek,

Deceased, and Kelly Schosek, as

Administrator of the Estate of

Carol L. Schosek, Deceased,

Appellants,

v.

Amherst Paving, Inc., et al.

Respondents.

Submitted by Michael L. Kobiolka, for appellant Todd Schosek.

Submitted by Michael G. Cooper, for appellant Kelly Schosek.

Submitted by Brian MacDonald, for respondent Amherst Paving, Inc.

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On review of submissions pursuant to section 500.11 of the Rules, order, insofar as appealed from, reversed, with costs, and that part of defendant Amherst Paving, Inc.'s motion that sought summary judgment dismissing the complaint against it denied. A triable issue of fact exists as to whether Amherst Paving created or exacerbated a dangerous condition. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Decided December 17, 2008

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